FACT Act and Freedom

Maria Castro, Associate Member, University of Cincinnati Law Review

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT) requires licensed pregnancy care clinics to post notices that state the existence of publicly funded family-planning services, such as contraception and abortion.[1]  In addition, the Act requires unlicensed pregnancy care clinics to post notices stating that they are not licensed by the State of California and do not have a licensed medical provider on staff or under contract to directly supervise the services.[2]  Several anti-abortion pregnancy centers filed for a preliminary injunction against the state to prevent enforcement of the Act and alleged the notice requirements violated their First Amendment rights to free speech and free exercise of religion.[3]  The District Court for the Southern District of California denied the motion and the Ninth Circuit affirmed.[4]  In November 2017, the Supreme Court granted certiorari, but limited the question to whether the FACT Act violates the Free Speech Clause of the First Amendment.[5]

Both licensed and unlicensed pregnancy related clinics offer ultrasounds, prenatal care, pregnancy testing and diagnosis, and counseling.[6]  The Act requires all licensed pregnancy-related clinics unable to enroll patients in state-sponsored programs to disseminate a notice that states California has public programs that provide free or low-cost access to comprehensive family planning service, prenatal care, and abortion for eligible women.  State-sponsored programs refer to Medi-Cal and California’s Family PACT Program.[7]  Pro-life clinics are unable to enroll patients in the Family PACT program because the program requires pregnancy care clinics to provide abortifacients and birth control.[8]  Therefore, the notice-requirement predominately affects pro-life pregnancy care clinics, since pro-life pregnancy care clinics cannot enroll in the Family PACT program.  Accordingly, this notice requirement does not apply to pregnancy care clinics that offer abortifacients and birth control, since they are able to enroll in the Family PACT program.

Plaintiff claims that this regulation is a regulation on speech and the Court should apply strict scrutiny when determining whether the requirement is unconstitutional.  Plaintiff argues the Court should ultimately find that the regulation fails strict scrutiny and therefore violates the Free Speech Clause.  Defendant argues the Court should find this requirement is a regulation of professional speech and therefore should apply intermediate scrutiny.  Additionally, Defendant believes the Court should hold the regulation does not violate the Free Speech Clause.  The Supreme Court should apply strict scrutiny review of the FACT Act licensed notice requirement because it is compelled speech and content-based speech.  However, the Court should follow similar precedent and uphold the regulation as a permissible speech regulation under strict scrutiny because it is narrowly tailored to the state’s compelling government interest.

Relevant Law

When determining whether a government regulation violates the Free Speech Clause, the Court applies one of three possible levels of review: (1) rational basis, (2) intermediate scrutiny, or (3) strict scrutiny.  The type of review depends on the type of regulation.  A neutral law that is generally applied is subject to rational basis review, the lowest level of scrutiny.  Under rational basis, a government regulation is valid if it is rationally related to a legitimate state interest.[9]  Intermediate scrutiny applies to speech regulations that are content neutral.[10]  Under intermediate scrutiny, a regulation passes if it (1) advances important/significant/substantial government ends; (2) is substantially related to advancing those ends; and (3) is not substantially more burdensome than necessary to advance those ends.[11]  Strict scrutiny applies to speech regulations that are content-based.[12]  Strict scrutiny is also used to review regulations that discriminate based on viewpoint.[13]  Under strict scrutiny, a regulation passes if it (1) advances a compelling or overriding government ends; (2) is directly or substantially related to advancing those ends; and (3) is the least restrictive, effective means to advance those ends.[14]

Pro-Life Pregnancy-Related Centers’ Argument

Plaintiffs argue the Supreme Court should apply strict scrutiny review when deciding whether the FACT Act violates the Free Speech Clause and ultimately hold the FACT Act does not survive strict scrutiny and is therefore an unconstitutional violation of the Free Speech Clause.[15]  Plaintiffs base this argument on the claims that the Act (1) compels speech, (2) is content based, and (3) is viewpoint discriminatory.[16]  It is undisputed that the Act compels speech.  Historically, compelled speech is subject to strict scrutiny.[17]  The Ninth Circuit applied a “professional speech” exception to compelled speech; however, petitioners argue that the Supreme Court has never found this category to be an exception.[18]  In addition, the pro-life centers believe that the Act is content-based since it prescribes the words the Plaintiffs must say.[19] Finally, Plaintiffs claim that the Act is viewpoint discriminatory because it “targets speakers with a particular viewpoint and forces them to advance the State’s viewpoint-biased message.”[20]

Plaintiffs argue the Act’s “Compelled Abortion Referral” does not survive strict scrutiny because the state’s interest in “providing women with information regarding healthcare” is not a compelling interest.[21]  In addition, Plaintiffs do not believe the Act is narrowly tailored since it has several limitations and exceptions, which “effectively compels only pro-life pregnancy centers to convey the State’s supposedly all-important message.”[22]  The regulation allows for an exception for pregnancy care centers that are enrolled in the Family PACT program.  Effectively, this provides an exception for pregnancy care clinics that provide abortifacients and birth control, which does not include pro-life centers.  Finally, the pro-life pregnancy centers argue the Act imposes burdensome requirements on the centers that are excessive to the State’s interest, such as having to print out notices and post them in the waiting room.[23]

California’s Argument

Defendant argues Plaintiffs cannot prevail on their free speech claim because the Act regulates conduct, not speech, but to the extent that it regulates speech, it is a permissible regulation of speech.[24]  Defendant bases this argument on three claims: (1) the notice requirement regulates professional conduct and survives under rational basis review; (2) the notice requirement regulates professional speech and survives under intermediate scrutiny review; and (3) the notice requirement regulates commercial speech and survives under rational basis review.[25]  Defendant claims a regulation on licensed facilities concerns professional conduct, not speech.[26]  Professional conduct includes regulations on forms of treatment.  Defendant also argues if the Act does regulate speech, it regulates professional speech, which the Ninth Circuit held to be an exception to the strict scrutiny review requirement of compelled speech, and requires a diminished form of review.[27]  Finally, Defendant claims the regulations on licensed-facilities are a permissible regulation of commercial speech.[28]

Defendant asserts the State may exercise its police power by regulating medical professions.[29]  Defendant further claims the First Amendment “allows leeway to regulate professionals to protect the health and general welfare of its citizens even where the state’s regulation has an incidental effect on protected speech.”[30]  Defendant argues the Court should apply intermediate scrutiny to the state’s regulation of professional speech and that it ultimately prevails under such review.[31]  Defendant claims the purpose of the Act is to “ensure California women know their reproductive rights, and the healthcare resources available to them, when they make their personal reproductive healthcare decisions” and this purpose is a both a substantial and compelling interest.[32]  According to the Defendant, the Act is drawn to achieve this interest because it is “carefully drawn and directly advances California’s interest in informing women of the availability of free or low cost health care resources and the manner in which they may access those resources.”[33]

The Court Should Apply Strict Scrutiny

There are two types of compelled speech cases typically heard in the abortion context.  The first category includes speech regulations that require physicians to disclose the risks and side effects associated with abortion, along with regulations that require physicians to describe the developmental details of the fetus, including showing the sonogram to the woman.[34]  Typically, courts uphold this type of speech regulation as “reasonable regulations of licensed professional conduct.”[35]  Second, there are speech regulations such as the one in the National Institute of Family and Life Advocates, which require pro-life pregnancy-related centers to disclose the availability of other pregnancy resources, such as abortion and contraception, and to disclose when they are not a medically licensed facility.[36]  Typically, courts have struck down this type of regulation as “ideologically compelled speech.”[37] Among the latter type of speech, circuits are split on the applicable level of scrutiny.[38]  The Eighth and Fifth Circuits have applied a reasonable basis standard, striking down regulations similar to the FACT Act.[39]  The Ninth Circuit applied intermediate scrutiny when it upheld the FACT Act.  To resolve legislative confusion, the Supreme Court should adopt a uniform standard that applies to all forms of compelled professional speech, regardless of whether the compelled professional speech is in the context of abortion.

The Ninth Circuit did not identify any Supreme Court precedent related to compelled professional speech and instead applied its own precedent.[40]  The Ninth Circuit “recognized a ‘continuum’ of First Amendment protection in professional settings, with professional conduct on one end, protected individual speech on the other, and professional speech somewhere in the middle.”[41]  The Ninth Circuit based this decision on its precedent from Pickup.[42]  Accordingly, the Ninth Circuit applies different standards of review depending on where the speech falls on the continuum.

However, there is no need for a “professional speech” exemption from the strict scrutiny review of compelled speech.  Instead, whether the speech falls under the category of “licensed professional” is relevant when determining whether the regulation passes strict scrutiny.  Under strict scrutiny review, the state may have a compelling government interest in regulating licensed professionals.  For example, the state has a compelling interest in ensuring that medical professionals receive informed consent from their patients, and accordingly can compel doctors to make certain statements that are “truthful and not misleading.”[43]  Therefore, it is possible for regulations on licensed professionals to survive strict scrutiny, as long as they are narrowly tailored to a compelling government interest.

The Ninth Circuit found the license notice requirement was content-based, but that it did not trigger strict scrutiny review because it did not discriminate based on viewpoint.[44] However, “a speech regulation targeted at specific subject matter is content based, and thus subject to strict scrutiny, even if it does not discriminate among viewpoints within the subject matter.”[45]  The license notice requirement is content-based because it regulates the content of what the pregnancy-related clinics must say.  Therefore, strict scrutiny should be applied.

When determining whether the FACT Act passes strict scrutiny, it is necessary to consider the state’s purpose in passing the Act, along with whether there are other, less restrictive ways to achieve the state’s purpose. The state’s purpose is to ensure California residents know their rights and options before making healthcare decisions.[46]  There are many methods that a state could use to educate and inform its residents without compelling private healthcare facilities to advertise public healthcare resources.  For example, the state could advertise its own resources through television, radio, billboards, and other media.

However, the legislature found that the ability of women to receive accurate information about their reproductive rights was being hindered by crisis pregnancy centers, such as the Plaintiffs in National Institute of Family and Life Advocates.[47]  The legislature found that crisis pregnancy centers utilize “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”[48]  If a woman enters a crisis pregnancy center and mistakenly believes that it will inform her of all her options, then she may rely on its advice without seeking additional opinions.  Pregnancy decisions are time sensitive, which means that it is necessary for women to receive access to information and care early on in their pregnancy.  Accordingly, if the state has found that crisis pregnancy centers use intentionally deceptive advertising practices that mislead women, then it has a compelling interest in regulating these medical practices.

Requiring facilities to simply post a notice that the state offers additional resources will quickly and easily allow a patient to identify additional information about their healthcare options.  Posting a simple sign in the waiting room is not an overly burdensome requirement.  Medical facilities are often required to post certain notices to their patients; this notice would not require any overly burdensome effort on the part of the medical facility.  This regulation is the least restrictive option, which is narrowly tailored to the government’s compelling interest.  As a result, it passes strict scrutiny.

Conclusion

The FACT Act license notice requirement is constitutional.  The regulation survives under strict scrutiny.  California’s compelling interest is to “ensure that women have access to information regarding state-sponsored reproductive care and counseling in a timely manner.”[49]  The license notice requirement is narrowly tailored because pregnancy decisions are “uniquely time-sensitive” and therefore pregnancy-related relevant information must be disseminated as soon as possible to pregnant women in order to further the government’s purpose.[50]

[1] Natl. Institute of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) (a licensed pregnancy care clinic is a clinic that is licensed by the State of California and has the primary purpose of providing family planning or pregnancy care services).

[2] Id.

[3] Id.

[4] Id.

[5] Natl. Institute of Family & Life Advocates v. Becerra, 138 S.Ct. 464 (2017).

[6] Id.

[7] National Institute of Family and Life Advocates v. Becerra, 2018 WL 347510 (U.S.), 10 (U.S., 2018).

[8] Id.

[9] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 840 (1992).

[10] Kelso, The Structure of Modern Free Speech Doctrine: Strict Scrutiny, Intermediate Rev., & “Reasonableness” Balancing, 8 Elon L. Rev. 291, 293 (2016).

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 294.

[15] National Institute of Family and Life Advocates, 2018 WL 347510 (U.S.) at 17.

[16] Id. at 17-18.

[17] Id. at 17.

[18] Id.

[19] National Institute of Family and Life Advocates, 2018 WL 347510 (U.S.) at 18.

[20] Id.

[21] National Institute of Family and Life Advocates, 2018 WL 347510 (U.S.) at 18-19.

[22] Id.

[23] Id.

[24] National Institute of Family and Life Advocates, et al., Plaintiffs and Appellants, v. Kamala Harris, Attorney General of the State of California, in her Official Capacity, et al., Defendants and Appellees., 2016 WL 1619316 (C.A.9), 21 Defendant has not yet submitted a reply brief to the United States Supreme Court at the time of this writing).

[25] Id. at 21-25; 33.

[26] Id. at 19.

[27] Id.

[28] Id.

[29] National Institute of Family and Life Advocates, 2016 WL 1619316 (C.A.9) at 25 (citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 881-84 (1992).

[30] Id. at 22.

[31] Id. at 29.

[32] Id.

[33] National Institute of Family and Life Advocates, 2016 WL 1619316 (C.A.9) at 29.

[34] Roy, Constitutional Law-Ninth Circuit Applies Intermediate Scrutiny to Mandated Abortion Clinic Notices-Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016), Cert. Granted in Part Sub Nom. Nat’l Inst, 50 Suffolk U.L. Rev. 771, 776 (2017).

[35] Id.

[36] Id.

[37] Id.

[38] Roy, at 776-777.

[39] Id. at 777.

[40] Id. at 778.

[41] Id.

[42] Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013) (The Ninth Circuit reviewed a California law banning mental health therapists from conducting any practice that sought to change a minor’s sexual orientation.  The Court found that the level of protection to apply to profession speech or conduct was best understood along a continuum, with “public dialogue” on one end and “professional conduct” on the other.  Public dialogue is afforded the highest level of protection and professional conduct is afforded the least amount of protection).

[43] Haupt, Professional Speech, 125 Yale L.J. 1238, 1259 (2016).

[44] Natl. Institute of Family & Life Advocates, 839 F.3d at 834.

[45] Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2230, 192 L.Ed.2d 236 (2015).

[46] Natl. Institute of Family & Life Advocates, 839 F.3d at 829.

[47] Id.

[48] Id.

[49] Roy, supra, at 779.

[50] Id.

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